1 paskaita.

2. Values Served by Transparency.

-Access to the relevant documentation; the reasons behind governmental action;
improve decision-making
-democratic polity; reasoned argument
-Government should be accountable for its action;
-know the information held about them in order to check its correctness and the uses
to which it is put.
- method of ensuring that Member States adhere to their EU
obligations.
3. Transparency encompasses features, such as: - the holding of meetings in public,
- the provision of information, - the right of access to documents (provide
information that will then form the basis for a legal challenge to an EU measure).
4. Transparency as a fundamental principle protected in the Lisbon Treaty. Pradtas
nuo Mastrichto sutarties. To improve the openness and transparency of the Union, in
order to make it more accessible to the public. The Treaty of Amsterdam enshrined
access to documents as a Treaty right.
There is a detailed draft agreement between the Commission and European Parliament
on a Joint Transparency Register, which will cover, subject to limited exceptions, all
activities that seek to influence the EU policy and decision-making process. Those
who engage in such activities are subject to a Code of Conduct. The Lisbon Treaty
(entered into force on 1 December 2009) makes provision for transparency in a
number of ways.
First, transparency features as a general objective of the EU (decisions are taken as
openly as possible and as closely as possible to the Citizen). Secondly, the Lisbon
Treaty links transparency, dialogue, and consultation (EU institutions shall maintain an
open, transparent, and regular dialogue with representative associations and civil
soiety; in order to promote good governance and ensure the participation of civil
society). Thirdly, transparency features within the legislative process (to meet in
public when it deliberates and votes on a draft legislative act). Fourthly, the Lisbon
Treaty retains the linkage between transparency and access to documents (a right of
access to document; General principles and limits on grounds of public or private
interest governing this right of access to documents). Finally, transparency is relevant
for the Member States (Treaty articles on free movement carry an obligation of equal
treatment to generate an obligation of transparency).
5. Access to Documents as a fundamental right. (svarbus aikumo aspektas). 1)
Foundation: Regulation 1049/2001 improved the position on access to documents in
several respects, by for example softening the nature of some of the exceptions and
requiring a register of documents to be kept. The new legislation was implemented by
the three EU institutions into their own rules of procedure, and has been applied to EU
agencies. The right of access to documents is also enshrined in Article 42 of the
Charter of Fundamental Rights.
The European Ombudsman has been central to the development of openness and
transparency as broader principles of law. The Ombudsman concluded that (1) failure

to adopt rules governing public access to documents and (2) to make those rules
easily available to the public constituted maladministration. Provided guidance on
access to information via the Code of Good Administrative Behaviour.
2) Initial Case Law: Case T-194/94 Carvel and Guardian Newspapers Ltd v
Council - the Council exercised its discretion whether to release documents it must
genuinely balance the interests of citizens in gaining access to documents with the
need to maintain confidentiality of its deliberations. It could not simply adopt a
general blanket denial of access to a class of documents.
Case C-58/94 Netherlands v Council- The ECJ confirmed the importance of the
right of public access to information, and its relationship to the democratic nature of
the institutions, but rejected the argument that such a fundamental right should not
be dealt with purely as a matter of the Council's internal Rules of Procedure.
Case C-353/99 P Hautala v Council- annul the Council's refusal to consider granting
partial access to politically sensitive documents. Despite the failure to articulate a
general right of access to information, the courts played a significant role in
elaborating the content of the right of access to information contained in the
procedural rules and legislative decisions of the institutions.
3) Regulation 1049/2001: Any regime of access to information will contain: provisions defining the institutions covered, - the meaning of the term document, the beneficiaries of the scheme, - the exceptions that limit or preclude access.
Protecting the Reality of Access- the right of access to documents included access
to information contained in the document, not just the document itself. CASE dl
komisijos sprendimo atisakyti vertinti dokument dl per didelio kiekio. Teismas
nusprend: The refusal to undertake any concrete assessment was therefore in
principle manifestly disproportionate. Commission must retain the right to balance the
interest in public access against the burden of work in order to safeguard the interests
of good administration. Panaikino Komisijos sprendim. Interpretation of the
Exceptions- exceptions contained in the legislation and the way in which they are
interpreted by the courts. Most are qualified by provisions allowing access even if the
document relates to a protected interest where there is an overriding public interest in
disclosure. There are, however, some exceptions that are mandatory, in the sense that
access is prohibited where disclosure would undermine the relevant interest with no
provision allowing access on grounds of public interest. The applicant is required to
proffer convincing reasons why the public interest necessitates overriding the
exception.
There are a number of juridical techniques open to courts when construing
such exceptions.: - review the facts; - they can decide on the legal meaning of an
exception; - they can pass judgment on whether the public interest warrants
disclosure. The EU courts state repeatedly that exceptions to the right of access to
documents should be interpreted narrowly.
Case C-266/05 P Jose Maria Sison v Council- pra prieigos prie dokumento dl
terorizmo. The Council atsisak ,nes tai prietaravo public security and international
relations. the Council had a wide discretion. ????

Case C-64/05 P Sweden v Commission [2007]- dl iimties Reguliavim, kad

vieniems buvo liberalesn. Article 4(5) of Regulation 1049/2001, which provides that a
Member State may request the Union institution not to disclose a document
originating from that Member State without its prior agreement, Article 4(5) did not
confer on the Member State a general and unconditional right of veto. Member State
was afforded the opportunity to show why its documents fell within those exceptions.
Article 53 of the Charter addresses the relationship between the Charter and
fundamental rights as recognized and protected by, inter alia, international law.
Cases KADI. Faktai: Usald las ,kurios manomos buvo skirtos palaikyti AL-Qaeda
. Security Council Resolutions, which established a Sanctions Committee to designate
those who should be subject to such freezing orders. This Committee obtained its
information from states and regional organizations and the names placed on the list
were reviewed after twelve months.Apeliantas teig, kad tai prietarauja Reguliavimui.
Sprendimas: it was not for the Community judiciary to review the lawfulness of a
resolution of an international body. The Community courts should rather review the
lawfulness of the implementing Community measure, including full review for
compliance with EC fundamental rights. Paeista the right to be heard, right to an
effective legal remedy, and to the right to property.
Case TURCO. The ECJ was again more liberal than the CFI. Exception for legal advice
contained in Regulation 1049/2001. staigos turi atsisakyti nuo prieigos prie
dokumento, kur atskleidimas pakenkt teismini nagrinjim ir teisininko konsultacijos
apsaugai, jei nra svarbiausi visuomens interes atskleidimo. directive on
asylum. The risk that this interest would be undermined had to be reasonably
foreseeable and not purely hypothetical. Wwhether there was any overriding public
interest justifying disclosure, which included the advantages of increased openness
and citizen participation in the decision-making process, thereby leading to a more
legitimate and accountable democratic system. It was, in principle, open to the
Council to base its decisions in that regard on general presumptions which applied to
categories of documents, but it was incumbent on the Council to establish in each
case whether those general considerations were in fact applicable to a specific
document that it was asked to disclose.
Only a few of the exceptions are regularly invoked.
2 paskaita. THE PRECAUTIONARY PRINCIPLE
When the scientific evidence is uncertain: - challenge to and interpretation of EU
legislation; - actions brought against Member States.
CASE of BSE: faktai: Commission decision banning export of beef and beef products
from the UK in the wake of mad cow disease. The UK argued that the decision was
disproportionate. Sprendimas: The ECJ held that 'where there is uncertainty as to
the existence or extent of risks to human health, the institutions may take protective
measures without having to wait until the reality and seriousness of those risks
become aparent.

CASE NFU: neminjo spjamojo principo aikiai, bet buvo numanoma apsaugini
mat teisinime. a prima facie infringement of Article 34 TFEU on the free movement
of goods. The Member State then seeks to defend its action on the ground of public
health. Subject to certain conditions, the legitimacy of state action to protect health
when the scientific effects of the particular product were difficult to estimate.
Case TOOLEX: dl mediagos trichloroethylene ,kuris paeid straipsn. Tai buvo CFI
sprendimas to elevate the precautionary principle to the status of a new general
principle of EU law.
Svarbs Pfizer and Artegodan nuosprendiai. Artegodan : Article 191 TFEU public
health; Article 168(1) TFEU a high level of human health protection; a high level of
consumer protection. It follows that the precautionary principle can be defined as a
general principle of Community law requiring the competent authorities to take
appropriate measures to prevent specific potential risks to public health, safety and
the environment, by giving precedence to the requirements related to the protection
of those interests over economic interests. is principas gali bti vertintas kaip
autonominis. Pfizer: emphasis is on the EU having discretion to adopt
protective measures in accord with the precautionary principle. Where it
proves to be impossible to determine with certainty the existence or extent of the
alleged risk because of the insufficiency, inconclusiveness, or imprecision of the
results of studies conducted, but the likelihood of real harm to public health persists
should the risk materialize, the precautionary principle justifies the adoption of
restrictive measures, provided they are non-discriminatory and objective.
It is clear that the precautionary principle is used when reviewing the
legality of Union action.
CASE
Pfizer (1999) and the way in which the precautionary principle was
interpreted and applied by the CFI. a Regulation that withdrew authorization for an
additive to animal feeding stuffs. spjamasis principas buvo pritaikytas. It was not
necessary for the risk assessment to prove conclusive scientific evidence of the reality
of the risk and the seriousness of the adverse consequences were that risk to become
a reality. Nor however could a preventive measure be based on a purely hypothetical
approach to the risk without any scientific verification. - A preventive measure could
only be introduced 'if the risk, although the reality and extent thereof have not been
"fully" demonstrated by conclusive scientific evidence, appears nevertheless to be
adequately backed up by the scientific data available at the time when the measure
was taken.
Complementary components of this risk assessment were: 1) it was for the Union
institutions to determine the level of protection which they deemed appropriate for
society. This was an essentially political determination. 2) This required a scientific
risk assessment by experts before preventive measures could be adopted. The
scientific advice should be based on principles of excellence, independence, and
transparency. Sufficiently reliable and cogent information by the scientific experts.
competent public authority must ensure that any measures that it takes, even
preventive measures, are based on as thorough a scientific risk assessment as
possible. Whether matters have gone beyond the level of risk that it deems acceptable

for soiety. Apportionment of the burden of proof. Established principle that the scope
of review was limited where the EU institutions had a broad discretion relating to the
level of risk deemed acceptable for society, and where they were required to make
complex assessments when applying such discretion to the facts of particular cases.
The courts were confined to determining: - whether the exercise of discretion
was vitiated by a manifest error, misuse of power, - whether the institutions clearly
exceeded the bounds of their discretion.
The Court then applied the principles to the instant case: the Commission was not
bound under the relevant legislation to adopt SCAN's conclusions. Justified by the
Commission's political responsibility and democratic legitimacy, and by political
control through the European Parliament.
The role of the court was limited: it was not to substitute judgment; it was limited to
finding a manifest error, misuse of power, or clear excess of discretion; and any
determination of such errors must be made on the basis of the material available to
the EU institutions when the contested Regulation was made. Analysed the applicant's
argument cast in terms of proportionality- the disadvantages of the ban were not
disproportionate to the objectives pursued, nor did they entail a breach of the right to
property.
CASE Artegodan. Dl vaist ,kuriuose gali bti panaios mediagos amfetamin.
The Court annulled the Commission decisions withdrawing the authorization,
principally because under the relevant EU legislation the Commission did not have the
competence to make the contested decisions. Even if the Commission had been
competent to make the decisions they were nonetheless flawed because of
infringement of the relevant Directive. The general principle identified in the case law
to the effect that public health should take precedence over economic considerations.
In cases of scientific uncertainty the competent authority should assess the medicinal
product in the light of the precautionary principle.
How the rules of evidence should be interpreted : initial authorization, the Commission
sought to withdraw authorization, The precautionary principle was relevant in
discharging this burden of proof.
The CFI nonetheless emphasized that withdrawal of authorization was only allowed
where a potential risk or lack of efficacy could be substantiated by new, objective,
scientific and/or medical data or information. The importance of consultation with the
relevant scientific committee. If judicial review was to be meaningful the CFI should
be able to consider the CPMP's . That for an act to be reviewable it must be binding on
and capable of affecting the legal interests of the applicant reasoning. Where the
Commission exercised broad discretionary power the court's role was limited to
assessing whether the decision was vitiated by manifest error or misuse of power and
to ensuring that the competent authority did not clearly exceed the bounds of its
discretion.

CASE Monsanto. Apie genetikai modifikuotus organizmus. principle can also be

used as a 'sword' by an applicant who is challenging the legality of an EU norm. If
dangers were identifiable the more comprehensive risk assessment under the normal .
The Precautionary Principle
and Review of Member State Action . 1)
Member State Compliance with Environmental Directives. Case: ar Pranczija tinkamai
pritaik Direktyv dl miesto atliekamo vandens valymo? aplinkos politika buvo
pagrsta spjamuoju principu ir kad pasiekiami moksliniai ir techniniai duomenys
aprpino pakankam rodym prieastins ssajos tarp paleidimo atliekamo vandens ir
vystymosi jros augmenijos Senos lankoje.
Member States and the Four Freedoms. EU courts acknowledged scientific
uncertainty in the context of actions against Member States for breach of the four
freedoms. Komisijoje v Pranczija. Valstybs nars klitis maisto perdirbimo importo
pagalb nuo kitos Valstybs nars, kur jie buvo teistai pardavinti, kuris buvo 34
Straipsnio paeidime TFEU. ECJ pripaino, kad nesant harmonizavimui Valstyb nar
galjo imtis apsaugini priemoni pagal spjamj princip. Valstyb nar negaljo
padaryti taip paprasiausiai hipotetinio pavojaus pagrindu. kad nustatyt, ar
mokslinius duomenis atsivelg, kai nacionaliniai statymai buvo priimti, ar tie
duomenys parod tikr pavoj, ir ar atveju mokslins abejons spjamasis principas
pateisino privataus asmens iekin valstybei.
The precautionary principle affects areas such as international trade law. Although the
principle was only explicitly mentioned in the environmental field its scope was
nonetheless wider. The potentially negative effects of a phenomenon should be
identified through scientific data. Scientific uncertainty could exist in relation to each
of these components of risk assessment. whether to act or not, this being 'an
eminently political decision. Guidelines for those situations where action was deemed
necessary based on the precautionary principle in order to manage risk. The
guidelines contain substantive, procedural, and evidentiary precepts: proportionate
(measures based on the precautionary principle should not be disproportionate to the
desired level of protection and must not aim at zero risk), not be discriminatory;
although provisional, should be maintained as long as the scientific data remained
'incomplete, imprecise or inconclusive and as long as the risk is considered too high
to be imposed on soiety.
For citizens or public authorities to demonstrate the danger and the level of risk
posed. Once a certain level of danger had been revealed it would then be for the
manufacturer to counter these arguments.
3 paskaita. Article 107(1) TFEU is the foundational provision on state aids. It provides
in effect that if aid is granted by a Member State or through state resources in any
form whatsoever and the aid distorts or threatens to distort competition by favouring
certain undertakings or the production of certain goods, then the aid shall be
incompatible with the common market. The obligation to prohibit state aid therefore
only becomes applicable if a number of X conditions are fulfilled.
The test for review of issues of law. Kad isirinkt egzistavim toki klaid, ir tai bus
Europos Sjungos teismams, kad isirinkt tinkam test apvalgai, kuri bus naudota

tokiomis aplinkybmis. The European Commission, will be accorded power to do

certain things on certain conditions. The conditional grant of power. Substitution of
judgment on questions of law remains a cornerstone of judicial review in the EU.
The general legal mantra is that the court should not substitute its judgment for that
of the initial decision-maker on issues of fact and discretion. The applicant must show
some manifest error, misuse of power, or clear excess in the bounds of discretion. To
review the factual findings and reasoning process.
Case DEUKA. Premijos kvieiams, ginino, kad tai neteista. The relevant
Community regulations set out broadly framed conditions that had to be established
before the power could be exercised, but then mandated that the power should be
exercised when those conditions were met. There are also instances where the Treaty
provisions or regulations set out broadly framed conditions that had to be established
before the power could be exercised, but then provided that the Commission might
authorize certain action but did not make this mandatory.
Case Philip Morris Holland. Vyriausybs pagalba tabako gamintojui. Teismas
atmet argumentus. Tai aprpina, kad 'pagalba palengvinti isivystym tam tikro
ekonominio veiksmo ar tam tikr ekonomini rajon, kur tokia pagalba nepalankiai
nepaveikia prekybos slyg iki masto prie bendr interes' gali bti suderinama su
viena rinka. is straipsnis yra slyga, per kuri valstyb gali siekti pateisinti pagalb
tam tikrai sumaintai sriiai kaip vertintas nacionalini kriterij.
Case Glaverbel. Vyriausyb dav pagalb stiklo gamintojams. Pretendentas
neparod, kad Komisija netinkamai naudojo savo galiojimus ar paved manifesto
klaid, ir vadinasi reikalavimas buvo atmestas. Commission should be accorded a
power of appraisal.
Case Pfizer. Dl gyvno perduoto kartu su antibiotikais. Galjo per spjimo princip ,
nors ir nebuvo pavojaus paremto moksliniais tyrimais. spjamasis principas pateisino
mat, net nepaisant to, kad nebuvo jokio mokslinio sitikinimo, tuo labiau su slyga,
kad pilnas rizikos vertinimas nebus galimas pasiekiamu laiku.
case Tetra Laval.(aukto lygio) pagrindinio Komisijos susijungimo sprendimo
anuliavimas. Norjo susijungti dvi kompanijos, ir komisija neleido. susijungimas galjo
sustiprinti Tetra vyraujanij padt rinkoje tam tikram kartonui supakuotos mainos ir
aseptiniam kartonui, ir kad tai galjo sukurti vyraujanij padt rinkoje tam tikrai
supakuotai rangai. Sujungto valstybs vientisumo bsima vyraujanioji padtis
dviejose artimai susijusiose rinkose tiktina sustiprint savo padt abiejuose, pakelt
barjerus jim, ir sumaint reikm egzistuojani konkurent, tuo bdu
privesdama prie monopolistins struktros rinkai visumoje. dl galimo horizontalaus ir
vertikalaus padarinio susijungimo ant sukrimo vyraujaniosios padties, ir paskui
charakterizavo tai kaip vertinimo manifesto klaid. rodymas, silytas Komisijos, buvo
nepakankamas kaip statymas, kad parodyt, kad vyraujanioji padtis pasirodys.
Case KADI.(aukto lygio). Kadi priklaus organizacijai, artimai sujungtai su Al-Qaeda,
ir dalyvavo finansavime ir jo operacij planavime. Tai buvo priimta Europos Sjungos
valdios organ, kurie informavo Kadi, kad jis bus raytas sra dar kart Europos

Sjungos reguliavime. Europos Sjungos staigos tos vertinimu, teismai turi ne tiktai
nustatyti, ar rodymas pasitikjo, buvo faktikai tikslus, patikimas, ir nuoseklus, bet turi
taip pat nustatyti, ar tas rodymas turjo savyje vis tinkam informacij, kuri bus
atsivelgta, kad vertint situacij ir ar tai buvo gebantis rodyti ivadas. Taryba
neturjo teiss priimti sprendimo, neatsiklaususi Valstybs nars.
Medium Intensity Review of Fact and Discretion - The courts conduct a Medium
Intensity Review in (A) Common Policies, (B) State Aids, (C) Structural Funds.
The meaning accorded to the concepts of law, fact, and discretion is central to judicial
review in any regime of administrative law. (Reikm, suteikta statymo, fakto, ir
taktikumo svokoms, yra centrin teisinei prieirai bet kokiame administracins
teiss reime.) Santykis, kuris daro ir turi dominuoti tarp apirjimo teismo ir pradinio
sprendimo - gamintojas dl statymo, fakto, ir taktikumo gali bti ginytas bet kokioje
administracins teiss sistemoje, ir Europos Sjunga nra jokia iimtis iuo atvilgiu
kaip liudytas nesenos jurisprudencijos.
4PASKAITA. CHAPTER ON LEGAL CERTAINTY AND LEGITIMATE EXPECTATIONS
The ECJ has consistently held that the principle of legal certainty is a fundamental
principle of EU law, which requires, in particular, that rules should be clear and precise,
so that individuals may be able to ascertain unequivocally what their rights and
obligations are and may take steps accordingly.
Case INTERTANKO. Jros terjai atsakingi pagal direktyv, paeid serious
negligence violated the principle, bet teismas nesutiko. Atsakomybs standartas
prisitaik prie neapibrto skaiiaus situacij, kurias buvo nemanoma numatyti i
anksto. Such concepts were used in national legal systems.
Legal Certainty and ACTUAL RETROACTIVITY of Legislation. Rules with an 'actual
retroactive' effect. This covers the situation where a rule is applied to events that have
already been concluded. Tai gali vykti ar kur sigaliojimo data vyksta pirma datos
publikacijos, ar kur Europos Sjungos norma prisitaiko prie aplinkybi, kurios buvo
nusprstos prie jos sigaliojim.
The arguments against allowing such measures to have legal effect are compelling.
This central precept is violated by the application of measures that were not in force
when the actual events took place. These concerns are particularly marked in the
context of criminal penalties.
Case Skoma Lux. ECJ laik, kad muitins reguliavimas negaljo bti pritaikytas prie
kompanij naujoje Valstybje narje, kurios kalba buvo valstybin kalba, anksiau,
negu reguliavimas buvo iverstas ir publikuotas Oficialiame leidinyje. Moraliniai
argumentai prie statym leidim turintys atgalin poveik padariniams yra paprasti.
The administration must have the power to alter its policy for the future, even though
this may have implications for the conduct of private parties, which has been planned
on the basis of the pre-existing legal regime.

There is the argument based on fairness in public administration. Reliance

may well be part of the rationale for protecting legitimate expectations. Circumstances
where legal protection should be given even though there was no actual reliance by
the claimant. For reasons of equality and because of the principle that like cases
should be treated alike. Rule of law considerations: concept of legal certainty;
autonomy and the ability to plan one's life. The protection of legitimate expectations is
that it fosters good administration and trust in government.
REVOCATION OF LAWFUL DECISIONS (teist sprendim panaikinimas). The
General Principle:Favourable Decisions Bind. Legal effect of formal decisions. Whether
the decision will be regarded as binding on the administration and the extent to which
the administration can revoke it.
Case ALGERA. FAKTAI : temporary employee with the Common Assembly who was
then appointed to a permanent position by a decision of the board that dealt with
employment matters. Sprendimas: asserting a vested right, that the right could not be
revoked. unilaterally revoked, it would not therefore constitute a vested right.
Individual administrative measures, which gave rise to individual rights. It then
considered whether such measures could be withdrawn. An administrative measure
conferring individual rights on the person concerned cannot in principle be withdrawn,
if it is a lawful measure; he need to safeguard confidence in the stability of the
situation thus created prevails over the interests of an administration of reversing its
decision.
Case de COMPTE. favourable administrative act. Pretendentas, kuris buvo samdytas
Europos Parlamentui nukentjo nuo psichikos ligos. ECJ laiksi, kad turintis atgalin
poveik palankaus administracinio akto atitraukimas buvo apskritai priklausantis labai
grietoms slygoms. an erroneous interpretation; entitled to revoke the earlier
decision with retroactive affect. legitimate expectations as to the legality of a
favourable administrative act, once acquired, could not subsequently be undermined
and there was no public-policy interest that overrode the beneficiary's interest in the
maintenance of a situation which he was entitled to regard as stable. (Nebuvo nieko,
kad manyt, kad de Compte sukl ankstyvesn sprendim per neteising informacij.)
REVOCATION OF UNLAWFUL DECISIONS. (neteist sprendim panaikinimas).
The general principle that formal decisions cannot be revoked retroactively is subject
to a number of qualifications. where there has been fraud, but also where the decision
rests on wrong or incomplete information from the persons concerned.
Case Herples. Faktai: received a separation allowance because he lived in Brussels
and worked in Luxembourg. He was transferred back to Brussels in 1968, but
continued to receive the allowance until the mistake was revealed in 1976. ECJ laik,
kad tuo metu, kai turintis atgalin poveik klaidingo sprendimo panaikinimas buvo
priklausantis grietoms slygoms, toks sprendimas galjo visada bti panaikinamas
ateiiai. Legality v Justice: the extent to which lawful decisions are revocable; initial
decision is unlawful. There is clearly a public interest in ensuring that the
administration does not make decisions that are unlawful.

Case ALGERA. An illegal administrative measure could be revoked retroactively,

provided that this occurred within a reasonable period of time. They will take into
account: - the nature of the illegality, - whether the illegal decision gave rise to any
legitimate expectations for the person concerned, the impact that retroactive
withdrawal of the decision would have on the individual, - the effect on third parties
and - the time that has elapsed between the initial decision and the attempt to
revoke it. Retroactive revocation of unlawful measures.
Case De Compte. A balancing test for cases of prospective revocation would
however allow such matters to be determined in individual cases. The courts should be
equally willing to weigh the legality interest against the justice interest so far as it
relates to the individual.
Changes in Policy. Situations where a general norm or policy choice, which an
individual or group has relied on, is replaced by a different policy choice. A trader will
not be held to have a legitimate expectation that an existing situation, which is
capable of being altered by decisions taken by the institutions within the limits of their
discretionary powers, will be maintained. [W]hilst the protection of legitimate
expectations is one of the fundamental principles of the Community, economic
operators cannot have a legitimate expectation that an existing situation which is
capable of being altered by the Community institutions in the exercise of their
discretion will be maintained. (ATE case) . EU institutions have a margin of discretion
in the choice of means to achieve their policy, with the consequence that operators
cannot claim a legitimate expectation that an existing situation that is capable of
being altered by decisions taken within the limits of their discretionary power will be
maintained.(Cordis case)
If a legitimate expectation has been found to exist, the EU courts will ensure that it is
protected either through annulment of the offending provision, or through a damages
action. A prima facie legitimate expectation may be trumped by an overriding public
interest. The impact that such alteration might have on traders who based their
commercial bargains on pre-existing norms. Overriding public interest to protect
consumers, which means that even transitional measures should not be adopted.
Case Dieckmann. Fishery products from Kazakhstan should no longer be permitted
into the EU. The ECJ held that the absence of any transitional measures in the
decision to preclude import from that country did not violate the applicant's legitimate
expectations, since there was an overriding public interest to protect the health of
consumers.
5 paskaita. CHAPTER ON PROPORTIONALITY
Proportionality has been applied in a number of cases, including cases involving
discretionary social, political, or economic policy choices, cases concerned with
infringement of a right recognized by EU law, cases involving a disproportionate
penalty or financial burden.
Proportionality, as derived from German tradition, involves three factors: - the
measure has to be suitable for the attainment of the desired objective; - the disputed

measure has to be necessary, in the sense that the agency had no other option which
is less restrictive of the individual's freedom; - the measure has to be proportionate to
the restrictions thereby involved.
A version of the principle is now also enshrined in Article 5(4) TEU as part of
subsidiarity. It provides that where Union action is warranted pursuant to
subsidiarity, it shall not go beyond what is necessary to achieve the objectives of the
Treaty, and these requirements are further fleshed out in a Protocol to the Treaty.
In any proportionality inquiry the relevant interests must be identified, and there will
be some ascription of value to those interests, since this is a condition precedent to
any balancing operation. The courts will inquire: - whether the measure was suitable
or appropriate to achieve the desired end; - whether it was necessary to achieve that
objective; - whether this could have been attained by a less onerous method.
Proportionality and Discretionary Policy Choices. Proportionality is used to
challenge a discretionary policy choice made by the administration. The judiciary is
cautious in this type of case hould not substitute their judgment for that of the
administration. Courts are likely to apply the concept less intensively and will only
overturn the policy choice if it is clearly or manifestly disproportionate. The areas in
which the EU courts apply proportionality with relatively low intensity because of the
discretionary nature of the policy choices involved whenever the EU legislature
exercises a broad discretion involving political, economic, or social choices requiring it
to make complex assessments. Many proportionality challenges have arisen from
measures adopted under the Common Agricultural Policy (CAP).
Case FEDESA. Taryba prim Direktyv, draudiani naudojim tam tikr hormon
galvij kininkavime. Apeliantas teige, kad Direktyva yra negaliojanti ir pazeide
proporcingumo principa. It was appropriate and necessary to achieve the objectives
legitimately pursued by the legislation.
Case Affish. FAKTAI: pretendentas importavo uv i Japonijos ir siek, kad bt
anuliuotas Komisijos Sprendimas, neleidiantis Japonijos uvies Europos Sjung.
Apeliantas teig, kad visikas udraudimas buvo neproporcingas. The ECJ disagreed,
but considered in some detail the defensibility of a total ban based on the selective
investigation. It was reasonable to extrapolate from the firms investigated to others in
the industry; and the hygiene risks meant that protective measures should be put in
place expeditiously.
Case Jippes. The applicant contested the legality of a Directive to combat foot and
mouth disease that entailed non-vaccination for animals, subject to limited exceptions.
Sprendimas: It stressed that this criterion was not to be applied retrospectively: where
the EU legislature was obliged to assess the future effects of rules to be adopted and
those effects could not be accurately foreseen, the assessment embodied in the
legislation could only be challenged if it appeared to be manifestly incorrect in the
light of the available information when it was adopted. Direktyva proporcinga.
Case Pfizer. Virginiamycin buvo antibiotikas, pridtas labai mauose kiekiuose prie
gyvno perdavimo, kad skatint vystymsi. Leidimas buvo atsiimtas dl baims, kad

tokie priedai galjo sumainti gyvn pasiprieinim antibiotikams, ir kad is

pasiprieinimo majimas galjo bti perduotas monms. Ginino ir dl anksiau
aptartos manifesto klaidos ir dl proporcingumo.
Sprendimas:
proportionality
required that EU measures should not exceed the limits of what was necessary and
appropriate to attain the desired ends; that where there was a choice between several
appropriate measures recourse must be had to the least onerous; and that the
disadvantages caused must not be dispro portionate to the aims pursued. the
applicant had to show that the measure was manifestly inappropriate.
Proportionality and Rights. Atsisak leisti prieiti prie dokument, nes tai gali
paeisti ryius su II alimis. The ECJ will tend to construe limits to such rights strictly,
with the consequence that there will be a searching inquiry into the suitability and
necessity elements of proportionality, as exemplified by Hautala. Principle of
proportionality to consider partial Access. Derogation from the right of access be
limited to what was appropriate and necessary for achieving the aim in view. if the
Council removed, after examination, the passages that might harm international
relations. The right of access, coupled with concrete individual examination, was the
norm. It might well be accepted that such rights cannot be regarded as absolute, but
the very denomination of certain interests as EU rights means that any interference
should be kept to a minimum.
the boundary lines between state action and
individual rights
Proportionality, Penalties, and Financial Burden. Proportionality has regularly
been used by applicants claiming that a penalty or other financial burden is
excessive. A penalty or financial burden can be struck down without thereby
undermining the entirety of the underlying policy.
6 paskaita. CHAPTER ON RIGHTS BASED DECISION MAKING. The Lisbon Treaty
rendered the Charter of Fundamental Rights . The Lisbon Treaty in addition imposed an
obligation on the EU to join the European Convention on Human Rights (ECHR).
Pabriama, kad Chartija nesudaro Europos Sjungos mogaus teisi politikos
visumos. Pagrindini teisi Agentra buvo sukurta 2007. EU raises three general
issues that cut across particular subject matter areas: competence, content, and
desirability.( kompetencija, turinys, ir pageidaujamumas.)
The status of the Charter is dealt with in Article 6(1) TEU: same legal value as the
Treaties. The Charter itself is not incorporated in the Lisbon Treaty, but it is
accorded the same legal value as the Treaties. It can therefore be used against EU
action including legislation and against Member States when they are 'implementing'
EU law. Charter does not extend the field of application of Union law beyond the
powers of the Union, or establish any new power or task for the Union, or modify
powers and tasks as defined by the Treaties.
Article 6 (2) TEU stipulates that the Union shall accede to the ECHR, and that such
accession shall not affect the Union's competences as defined in the TEU and TFEU.
regard to the arrangements for the Union's possible participation in the control bodies
of the ECHR; accession to the ECHR does not affect EU competences or the powers of
its institutions.

Article 6(3) TEU - the fundamental rights, as guaranteed by the ECHR, and as they
result from the constitutional traditions common to the Member States, constitute
general principles of EU law.
Article 263 TFEU. The window through which fundamental rights were brought into
EC law was as general principles of law. ECHR dengia tiktai kai kurias i teisi, traukt
Chartij, ir dl tos prieasties prisijungimas nepaalint reikalingumo Europos
Sjungos savo dokumento, sauganio teises, kuriomis tai tiki, yra verti apsaugos.
rights-based constraints on the exercise of that power. The Charter protection
accorded to certain civil rights differs from that in the ECHR, as exemplified by the
broader remit of the Charter protection for equality. differing impact of the EU and
ECHR Treaties in at least some states. The supremacy doctrine is a central principle of
EU law.
The UK courts have held that even primary EU legislation that is inconsistent with EU
law can be declared inapplicable to the instant case. Such legislation will be
'disapplied' by the national court. The court can
issue
a
declaration
of
incompatibility. This declaration does not however affect the validity of the legislation.
Charter Content. Title I of the Charter is labelled Dignity, and contains five articles:
human dignity; right to life; right to the integritY; prohibits slavery, forced labour, and
the trafficking in human beings; outlaws the death penalty. Title II of the Charter
covers Freedoms: the right to liberty ;respect for private ;protection of personal
data ;the right to marry; the right to education in Article 14; the right to property in
Article 17. Title III deals with Equality: equality before the law; Respect for cultural,
religious gender equality; children's rights; the rights of the elderly . Title IV is
concerned with Solidarity: workers' right to information and consultation; the right of
collective bargaining; right of access to placement services; protection against
unjustified dismissal; fair and just working conditions and so on. Title V is entitled
Citizens' Rights: access to documents in Article 42; the right to good administration;
freedom of movement and residence and so on. Title VI deals with justice: the right to
an effective remedy and fair trial; the presumption of innocence and so on. Title VII
contains General Provisions which pertain to the Charter as a whole:the scope
of application of the Charter; to prevent new EU competences flowing from the
Charter; The scope of the guaranteed rights and so on. The principal focus will be on
the General Provisions in Title VII, since
these articles raise important issues
concerning the scope and reach of the Charter.
Reach of the Charter, Union
Institutions: Verticality and Horizontality.
Article 51(1) of the Charter Charter are addressed to the institutions, bodies, offices
and agencies of the Union Sutarties. Straipsniai gali dl kontrasto turti tiesiogin
padarin, kuris gali bti horizontalus ir vadinasi suriti privaias partijas, taip pat kaip
vertikalus, ridamas valstyb. Treaty articles can by way of contrast have direct effect,
which can be horizontal and hence bind private parties, as well as vertical, binding the
state. The same is true for regulations and decisions. Directives by way of contrast
can lead to vertical but not horizontal direct effect.
Competence
and the Charter. The Charter does not extend the field of
application of Union law beyond the powers of the Union or establish any new power

or task for the Union, or modify powers and tasks as defined in the Treaties. The right
might not generate legislative competence, but might well require some positive
action by Union and/or Member State authorities to safeguard the right in question.
There is some recognition of a positive duty to act on the EU institutions to protect
fundamental rights.
Rights, Principles, and the Charter. rights-principles dichotomy. rights enforceable
in the courts and principles that could be relied on against official authorities
particularly as regards social rights. rights could be pleaded directly in the courts.
Principles, by way of contrast, were mandatory in relation to the authorities which had
to comply with them when exercising their powers, and could be used as a basis for
censuring their acts. Private individuals would not however be able to bring a legal
action to enforce them. Health care and access to services of general economic
interest were, for example, said to be principles and not rights. Article 52(5) of the
Charter now provides that: The provisions of this Charter, which contain principles
may be implemented by legislative and executive acts taken by institutions, bodies,
offices and agencies of the Union, and by acts of Member States when they are
implementing Union law, in the exercise of their respective powers. They shall be
judicially cognisable only in the interpretation of such acts and in the ruling on their
legalyty. some guidance in this respect.
The Explanatory Memorandum has
provided as principles: the 'rights' of the elderly ; integration of those with
disabilities; environmental protection; gender equality ; family and professional life.
Charter provisions that are deemed to be rights will be judicially enforceable by
individuals. the individual claims that the EU has provided insufficient protection for
the right. rights may give rise to claims for positive action by the Union or Member
States when implementing Union law. Union has taken action and the individual argues
that it is inconsistent with a Charter right, and hence should be annulled. Principles an
individual cannot claim that the Union must take positive action in the absence of
Union legislation or executive action.
Limitations
and the Charter Rights: Article 52(1). limitation was
allowed, objectives of general interest did not constitute with regard to the aim
pursued a disproportionate and unreasonable interference that undermined the very
substance of the right.
CASE In Schmidberger. Buvo udarytas kelias, kuriame vyko demonstracija, ir dl to
sutriko laisvas preki judjimas. Sprendimas: those rights could justify a restriction of
other Community obligations, even a fundamental freedom such as free movement of
goods. freedom of expression and assembly were not absolute. The ECJ held that
they were: the disruption of Community trade was for a limited time on a limited
route; it was in pursuit of a genuine environmental aim; it was not designed to keep
foreign goods out of a particular state; efforts had been made to limit the disruption
caused by the demonstration; a ban on the demonstration would have been an
unacceptable limit on the right to peaceful demonstration. Charter is set out in
Article 52(1),Charter must be provided for by law and respect the essence of those
rights and freedoms. Subject to the principle of proportionality, limitations may be
made only if they are necessary and genuinely meet objectives of general interest
recognized by the Union or the need to protect the rights and freedoms of others. any

limitation on the exercise of a right or freedom must be provided for by law and
respect the essence of those rights and freedoms. a restriction should not be deemed
lawful if it undermines the essence of the guaranteed right. even if it does it will still
only be lawful if proportionate, necessary, and in the general interest.
Objectives of general interest disproportionate and intolerable interference, which
impaired the very substance of the rights guaranteed. Cases on derogations may
entail a balance between a fundamental right such as freedom of the press or
assembly and an EU freedom such as free movement of goods.
Treaty and Charter. article 52(2), which states that 'rights recognized by this Charter
for which provision is made in the Treaties shall be exercised under the conditions
and within the limits defined by those Treaties. The difficulty in deciding on the reach
of Article 52(2) will be to decide in relation to which Charter rights there are Treaty
provisions.
ECHR and Charter. Article 52(3), which provides that Charter rights that correspond
to rights guaranteed by the ECHR shall have the same scope and meaning as those in
the ECHR.
National Constitutions and
the Charter. fundamental rights as they result
from the constitutional traditions common to the Member States, those rights shall
be interpreted in harmony with those traditions. It imposes an interpretive obligation
on courts and legislature alike. duty is one of harmonious interpretation. Nothing in
the Charter should be interpreted as restricting or adversely affecting human rights
recognized in the respective areas to which public international law, international
agreements, and Member State constitutions apply.
International
Law and the Charter. KADI case. a Community Regulation
that froze the funds of those suspected of supporting Al-Qaeda. Security Council
Resolutions, which established a Sanctions Committee to designate those who should
be subject to such freezing orders. This Committee obtained its information from
states and regional organizations and the names placed on the list were reviewed after
twelve months. He argued that he was never involved in the provision of financial
support for terrorism and that his fundamental rights were infringed by the Regulation.
Sprendimas: paeid the right to be heard, right to an effective legal remedy, and to
the right to property.
Remedies and the Charter. The principal remedies are review of legality leading to
annulment of the offending measure, and damages liability. Charter accords 'individual
rights', individual concern does not have to be shown for regulatory acts that are of
direct concern to a person and do not entail implementing measures. Article 41
Charter enshrines a right to good administration, which is said to inhere in every
person. Direct complaint to the Constitutional Court is possible where it can be shown
that the ordinary courts have failed to uphold the applicant's constitutional rights.
Liability in damages is the other main remedy that might be sought for violation of
fundamental rights.

Charter is now rendered legally binding by the Lisbon Treaty. Claimants will be able to
point to a clear set of rights, which are legally binding on EU institutions and Member
States when they act within the sphere of EU law.